Riley v Police
[2017] NZHC 1070
•22 May 2017
IN THE HIGH COURT OF NEW ZEALAND CHIRSTCHURCH REGISTRY
CRI-2017-409-40 [2017] NZHC 1070
BETWEEN DAVID JUSTIN RILEY
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 18 May 2017 Appearances:
T MacKenzie for the Appellant
S Mallett for the RespondentJudgment:
22 May 2017
JUDGMENT OF MANDER J
[1] The appellant, Mr David Riley, was found guilty after a Judge alone trial of a charge of careless driving causing injury. The charge arose out of a collision which occurred when Mr Riley was passing a cyclist. Mr Riley appeals his conviction. He alleges the District Court Judge made factual errors and failed to properly apply the law.
Background
[2] The circumstances of the collision are of short compass. The cyclist, Mr Desmond Keogh, was riding his racing cycle on State Highway 1, heading south towards Rolleston. When observed by Mr Riley, he was positioned on the shoulder of the highway, to the left of the white line which delineates the shoulder from the carriageway (the shoulder line). Mr Keogh does not remember being hit, only of “freaking out” in the ambulance on the way to the hospital.
[3] The attending police officer spoke with Mr Riley at the scene. He recorded
in his traffic crash report Mr Riley’s account of what had occurred as follows:
RILEY v POLICE [2017] NZHC 1070 [22 May 2017]
I was heading back to Timaru. I was just thinking about football later in the day. I saw the cyclist ahead of me in the shoulder. I was keeping left, right up against the white line, but I was in my lane. As I went past the cyclist, I’m not sure what happened. I think he must have swerved out into my lane and I clipped him with the front of my car.
[4] Mr Riley’s evidence at trial was that he first saw the cyclist as he was approaching, approximately 200 metres in front of him. The cyclist was on the left- hand side of the shoulder line when he first saw him. Mr Riley’s evidence was that he felt he had sufficient space to pass the cyclist safely. He maintained there was nothing to suggest he was on a collision course with the cyclist, and that he was slightly to the left in his lane as he had just merged from another lane. His evidence was that as he passed the cyclist the collision was an “instant occurrence” and that he had no time to react and brake.
[5] Mr Riley believed the cyclist was approximately 30 centimetres, or, as he described it, the width of a cyclist in the inside lane (inside the shoulder area). Under cross-examination he elaborated that he would have been about
40 centimetres from the white shoulder line. In response to the suggestion made in cross-examination that the recommended passing distance was 1-1.5 metres, Mr Riley replied that he believed that he engaged in the passing manoeuvre with a safe distance between the two vehicles.
[6] There were no eyewitnesses who saw the crash, nor any independent expert or forensic evidence called to explain how and why the crash occurred.
The District Court decision
[7] Judge O’Driscoll correctly identified the sole issue for his determination to be whether Mr Riley was careless and thereby caused injury to Mr Keogh.
[8] In summarising the evidence, the Judge observed that Mr Keogh had given evidence that he was an experienced cyclist who regularly cycled and was engaged in competition cycling. He was familiar with the road and the dangers of cycling. In his evidence Mr Keogh said that as vehicles approached him from behind he would drop down to the left of the shoulder until they had passed and then ride back up to the shoulder line, keeping to the left of it at all times. Judge O’Driscoll inferred that
he adopted this practice both on this occasion and on other occasions when he was cycling on the open road. The Judge found Mr Keogh to be an honest witness who had given his evidence to the best of his ability.
[9] Judge O’Driscoll referred to the principles to be applied regarding the obligations of a reasonable and prudent driver. A person cannot be convicted unless their conduct falls below that standard. The Judge observed that a driver “must drive at all times in a manner and at a speed such that they are able to deal with any situation that may reasonably confront them”. The relevant legal principles the Judge sought to apply are those set out by Randerson J in Brooks v Police.1 They are not in dispute and it is worthwhile setting them out in full:
(a) The maximum res ipsa loquitur is not applicable in criminal proceedings alleging carelessness in relation to the use of motor vehicles. On the other hand, the facts may be so strong that the only reasonable available inference is that there has been careless driving unless and until something is suggested by the defendant by way of explanation: Police v Chapel [1974] 1 NZLR 225,227 per Roper J.
(b) It is not for the Court to conjure up fanciful or improbable explanations in favour of a defendant who offers no explanation, but it is for the Court to consider reasonable possibilities: Chappell and Sanders v Hill [1964] SASR 327,329-330 per Chamberlain J.
(c) Ordinarily, there must be some foundation laid in the evidence to support the reasonable possibility of an accident occurring without carelessness: R v Colgan CA2014/87, 2 December 1987 at p 8 per Cooke P. If it is a matter of drawing inferences from established facts, then if an inference for or against an accused is equally open, the accused is entitled to have the benefit of the doubt. On the other hand, if an inference favourable to the prosecution is so strong as to warrant its acceptance beyond reasonable doubt, then of course the accused is not entitled to that benefit: Colgan at 11.
(d) In the end, the question is whether the prosecution has proved beyond reasonable doubt that the defendant failed to exercise that degree of care and skill one expects from a reasonable and prudent driver. If he or she has not, the defendant will not be excused merely because the accident arises from an error of judgment: Chappell at
228, citing Simpson v Peat [1952] 2 QB 24,27 per Lord Goddard CJ.
[10] Judge O’Driscoll considered the evidence relating to the cyclist’s position on the road immediately prior to the collision was of significance. Mr Keogh’s last recollection was of being on the shoulder to the left of the shoulder line. Mr Riley
accepted that Mr Keogh was ahead of him on the shoulder of the road. There was no real difference between their evidence as to the position of the cyclist at the time Mr Riley approached.
[11] Judge O’Driscoll focussed on what Mr Riley had said to the attending
constable, and in particular:
As I went past the cyclist, I’m not sure what happened. I think he must have
swerved out into my lane, and I clipped him with the front of my car.
[12] The District Court Judge accepted what Mr Riley told the officer, that he was “not sure what happened”. The Judge considered that Mr Riley’s additional comment that he thought Mr Keogh “must have swerved out” into his lane was made in an attempt to explain or justify what had occurred. Judge O’Driscoll did not place any weight on Mr Riley’s comment that the cyclist must have swerved into his lane because, immediately prior to that supposition, Mr Riley stated that he was not sure what had happened.
[13] Judge O’Driscoll acknowledged that the Court is required to consider all possibilities other than carelessness which are “reasonable and not fanciful or improbable” and that some foundation must be laid in the evidence to support the reasonable possibility of an accident having occurred without carelessness.2
[14] Judge O’Driscoll acknowledged that were he to accept that Mr Keogh had swerved into Mr Riley’s lane, or that this was a reasonable possibility, he would be obliged to find Mr Riley not guilty of careless driving, it having been the unexpected and dangerous act of the cyclist that would have caused the collision. However, the Judge concluded there was no evidence of such an occurrence, and that Mr Riley’s comment was speculation without any evidential foundation.
[15] To the contrary, the only evidence from Mr Keogh was that he was travelling in the shoulder to the left of the shoulder line, and Mr Riley’s evidence that he was travelling in his lane and to the right of the shoulder line. The Judge held there was no evidence that Mr Keogh was over the shoulder line and in Mr Riley’s lane at the
time of the collision. Accordingly, Judge O’Driscoll concluded the only reasonable inference available was that Mr Riley made an error of judgement when he overtook Mr Keogh, in the absence of any evidence of Mr Riley swerving into his lane.
[16] Mr Riley, as a reasonable and prudent driver, was under an obligation to ensure that his overtaking manoeuvre was safe and to ensure his vehicle did not collide with the vehicle he was overtaking. The Judge found that an error of judgement had occurred as a result of Mr Riley not passing Mr Keogh within a safe distance and, as a result, a collision occurred. As a result, in those circumstances, Mr Riley was careless and the charged proved.
The appeal
[17] In bringing his appeal, Mr Riley maintains the District Court Judge made three errors in his assessment of the evidence. The first two alleged errors arise out of Judge O’Driscoll’s conclusion when he stated:
There is no evidential foundation that the cyclist “swerved into the motorists lane”... The only evidence that I have from Mr Keogh is that at the time he was travelling in the shoulder to the left of the solid white line.
(Emphasis added)
[18] Mr Riley submitted that two errors were made by the Judge in coming to that finding. Firstly, the Judge was not correct to conclude there was no evidential foundation for the cyclist having swerved into the motorist’s lane. Mr Riley maintained that an evidential foundation had been laid by his evidence that he was in his lane and did not leave it.
[19] Mr Riley was critical of the Judge’s focus on what he had said at the roadside when he suggested the cyclist must have entered his lane for the incident to have occurred, rather than coming to a conclusion based on the totality of the evidence. He submitted that had the Judge done so, he could not have found the charge proved beyond reasonable doubt. In that regard, it was observed that Judge O’Driscoll had been impressed by Mr Riley as a driver who was experienced, aware of his surroundings and of the need to ensure that he drove in a safe manner.
[20] Secondly, Mr Riley submitted that there was no evidence from Mr Keogh of where he was located at the time the collision actually occurred. The District Court only had available to it Mr Keogh’s oral evidence as to his usual practice of what he “would do” and where he would “usually” be riding relative to the shoulder line.
[21] Thirdly, Mr Riley submitted Judge O’Driscoll erred when he described, as Mr Riley put it, the “evolution” of the incident as an act of “overtaking”. Mr Riley submitted that this description of “overtaking” cannot be reconciled with Mr Keogh’s evidence that prior to the accident he was in his own lane to the left of the shoulder line. Mr Riley submitted the Judge appeared to have overlooked that fact, and approached the incident on the basis that Mr Keogh was in front of Mr Riley and that he had to perform an overtaking manoeuvre. This error, it was submitted, appeared to have influenced the conclusion the Judge drew as to what had occurred.
[22] In summary, Mr Riley submitted the District Court had only two potential inferences available to it. Either the cyclist veered into the car or the car veered into the cyclist. Mr Riley submitted he had given evidence based upon his recall of what had occurred, whereas Mr Keogh was unable to give direct evidence of what had occurred at the time. It followed, in his submission, that there was a reasonable inference available to the Court that Mr Keogh had veered into his vehicle, and that he should have received the benefit of the doubt as a result. In order to find the charge proven to the criminal standard, the Court would need to have concluded that the only available reasonable inference from the facts was that Mr Riley’s carelessness had caused the collision. He submitted the police were unable to prove this was the case.
Two relevant cases
[23] Before considering the merits of the appeal it is useful to refer to two authorities of this Court to which I was referred in the course of the argument. Both cases considered similar issues to that which have arisen in the present case and resulted in different outcomes.
[24] In Ward v Police, the appellant lost control of her vehicle resulting in a collision.3 She described in her evidence trying to “fight the steering wheel” and the car taking over. She described hearing a “thud”, followed by metal scraping. Her car hit a bridge on her side of the road before ricocheting across the road, striking a vehicle coming in the opposite direction. The appellant was convicted of careless driving causing injury on these uncontested facts despite the suggestion made that
the prosecution could not exclude some external reason for the loss of control such as a mechanical defect.
[25] On appeal, the appellant argued that it was not open to the trial Judge to have inferred carelessness from the evidence, and that the Judge had effectively placed the burden of proof on her. In examining whether the District Court had been wrong to find carelessness proven beyond reasonable doubt, Heath J referred to the same principles that had been identified by Randerson J in Brooks v Police, and applied in the present case.
[26] Heath J reiterated that before a trial Court can convict the facts must have such force as to allow a Court to conclude beyond reasonable doubt the accident would not have occurred without want of care.4 In that case the trial Judge concluded that an insufficient evidential foundation had been laid to raise the possibility of a mechanical defect having caused the crash. In confirming that this finding was available to the trial Judge, Heath J observed that in the absence of an evidential foundation to raise the possibility of mechanical failure there was sufficient evidence for the Judge to have found beyond reasonable doubt that a lack
of care by the driver had caused the accident.
[27] That case is to be contrasted with the fresh evidence that was adduced in Brooks v Police which resulted in the appeal being allowed.5 In that case the appellant’s vehicle failed to round a gentle right-hand bend in the roadway. The appellant managed to bring the vehicle back onto the road but could not control its path across the carriageway, where it collided with an oncoming van travelling in the
opposite direction.
3 Ward v Police HC Auckland CRI 2003-404-112, 17 December 2003.
4 Police v Chappell, above n 2.
5 Brooks v Police, above n 1.
[28] The police case was that the appellant had moved gradually or slightly off the roadway, consistent with the vehicle “running wide” on the bend, which was said to have been a classic sign of inattention, and therefore carelessness. On the appeal expert evidence was provided which led to the pivotal question being whether the appellant’s car drifted to the side of the road or whether there had been a deliberate steering action placing the vehicle off the road. The expert had found evidence of the latter type of action. The deliberate steering could have been to correct the consequences of inattention, but could also have been to avoid a perceived hazard. Because of injuries suffered by both the appellant and the driver of the oncoming vehicle, they were unable to remember anything about the accident itself.
[29] Randerson J observed that the issue was whether the only logical and reasonable inference from the evidence was that the appellant had lost control of her car as a result of some level of inattention on her part in relation to her driving responsibilities. In light of the expert’s evidence, the Judge did not consider that it had been shown beyond reasonable doubt that the police theory of the accident was the only one reasonably available. In particular, Randerson J considered there was a reasonable possibility on the evidence that the appellant did make a deliberate movement of the vehicle to the left rather than simply running wide on the bend.
[30] Once the reasonable possibility of a deliberate left turning movement had been accepted, as Randerson J observed, it was not possible to determine with any certainty whether the need for the action arose from prior inattention on the appellant’s part or from some event external to her vehicle. Because the evidence of the experts in support of the possibility of a deliberate turning movement had a sufficient foundation in the evidence, the Court held it had not been established beyond reasonable doubt that the cause of the car leaving the road had resulted from careless inattention. Randerson J noted that it was not one of those cases where the facts were so strong that the only reasonable and logical explanation for the vehicle running off the road was that carelessness must have been involved.
[31] Mr Riley’s submission was that effectively the present case falls into the category of Brooks v Police, rather than Ward v Police. In that regard, Mr Riley’s submission was that Judge O’Driscoll had erred in his conclusion that there was no
evidential foundation for the cyclist, Mr Keogh, having swerved into the motorist’s lane. Because the evidence admitted of two potential inferences as to how the collision had occurred, namely the cyclist veering into the car or the car veering into the cyclist, this was not one of those cases of which Ward v Police was an example, where the Court could conclude beyond reasonable doubt that the collision could not have occurred without want of care on the part of Mr Riley.
Decision
[32] I reject Mr Riley’s contention that Judge O’Driscoll made a factual error when describing the incident as involving an act of “overtaking” by Mr Riley of the cyclist. I do not consider anything turns on the Judge’s description of Mr Riley’s driving as having involved an “overtaking manoeuvre”. Mr Keogh on his bicycle and Mr Riley in his car were travelling in the same direction on the highway, one further down the road from the other. In order for Mr Riley to conduct himself as a reasonable and prudent driver, he was under an obligation to pass or overtake the cyclist in a safe manner.
[33] Mr Riley was critical of the Judge elevating Mr Keogh’s evidence of his usual practice to actual evidence of his location at the time of the incident. I accept there is some substance in that submission. Mr Keogh gave evidence that as vehicles approached him from behind he would drop down to the left of the shoulder until they passed and then ride back up to the shoulder line, keeping left at all times.
[34] Judge O’Driscoll inferred Mr Keogh had adopted this practice on this occasion, as he usually did when cycling on the open road. Mr Keogh, however, had no recollection of the incident itself, and he was unable to say where he was at the time of the collision. The Court was entitled to take into account Mr Keogh’s ordinary practice when cycling on the open road as a piece of circumstantial evidence. Of itself, however, it did not establish where Mr Keogh was at the time of the collision.
[35] I do not consider the perhaps disproportionate weight the Judge gave to that aspect of Mr Keogh’s evidence to be particularly material. Mr Riley’s own evidence consistently places the cyclist to the left of the shoulder line. Firstly, Mr Riley’s
account, given to the attending officer at the time, was that he saw the cyclist “ahead of me in the shoulder”. He made no observation to the constable of having seen the cyclist other than in that position prior to the collision.
[36] Secondly, in his evidence he does not suggest having observed the cyclist anywhere other than within the shoulder area. Mr Riley stated that when he first saw the cyclist he was on the left-hand side of the shoulder line within the median area. In Mr Riley’s recounting of his observations from that point at no stage does he refer to Mr Keogh being to the right of the shoulder line.
[37] The second related criticism is the Judge’s conclusion that there was no evidential foundation that the cyclist “swerved” into the motorist’s lane. Mr Riley submitted the Judge’s decision does not contain any further discussion of his evidence, and that he focussed solely on the roadside statement made by the defendant. I do not consider that critique bears scrutiny.
[38] Firstly, it is necessary to set out in full that passage of the Judge’s decision
which is the focus of Mr Riley’s challenge. It reads as follows:
[42] There is no admissible evidence before me that Mr Keogh made a sudden movement and travelled from the inside shoulder of the white line over into the line that the defendant was travelling. Mr Riley’s “assumption” that Mr Keogh must have swerved into his lane is speculative and based on his theory as to how the crash occurred. There is no evidential foundation that the cyclist “swerved” into the motorist’s lane.
I consider Judge O’Driscoll’s summary of the state of the evidence to be accurate.
[39] Judge O’Driscoll’s analysis of the statement made by Mr Riley to the attending officer accords with my own assessment. Mr Riley was being entirely honest when he said that he was not sure what had happened. When he subsequently stated that he “thinks” the cyclist must have swerved into his lane and that he clipped him with the front of his car, this was simply supposition on the part of Mr Riley in an attempt to explain from his point of view what must have happened. As Judge O’Driscoll observed, that was an understandable reaction by the driver attempting to explain or justify what had occurred. Clearly, Mr Riley was not representing that this is what he saw. To the contrary, he was not sure what happened.
[40] Moving to Mr Riley’s evidence, I think it is of some value to set out in full the relevant passages from his evidence. After describing the position of the cyclist as being on the left-hand side of the shoulder line when he first saw him, Mr Riley’s evidence was as follows:
Q. As you went past him, or as you approached him, were you looking at him or was there anything giving you concern, or can you tell us?
A. No, so I had identified the cyclist, I was looking out in front of me. I could still see him in my peripheral vision but there was nothing to suggest that we were on a collision course.
Q. And where were you in terms of your position, left or right?
A. Because I had just merged, I was sitting slightly left, as just, as natural when merging, but I felt like there was, I was in my lane and there was enough safety zone between myself and the cyclist for me to pass safely.
Q. So you said you felt something as you passed, as you passed the cyclist?
A. Yes, so there was really no time for me to react, I didn’t even have time to put my foot on the brake. It was just an instant occurrence where I, yeah.
[41] Mr Riley explained why he had no “impression” there was a risk to the cyclist as being:
A. Because I felt he was on the left-hand side on the white line, I was in my lane, and I felt like there was, it’s hard to judge width when you’re travelling at a hundred kilometres an hour but I felt like there was enough space between myself and the cyclist to pass safely.
(Emphasis added)
[42] Under cross-examination Mr Riley was asked:
Q. So, I put to you the fact that you’ve actually connected with the cyclist would be evidence that you haven’t passed him safely. What do you say about that?
A. As I said before, as I was travelling along, I had identified the cyclist. I could clearly see he was there, but I felt like I had given a safe amount of distance to travel past him and, as I said before, it happened extremely quickly where he’s veered into the lane and I haven’t even had time to put my foot on the brake.
[43] As is apparent from the last passage, Mr Riley continued to contend the cyclist must have veered into him, but he gives no evidence of having witnessed that, rather it is his explanation or theory as to what must have occurred.
[44] Because I have concluded that Judge O’Driscoll was correct in his conclusion there was no evidential foundation to suggest the cyclist veered into the car, the present case is distinguishable from that of Brooks v Police, where the expert evidence of the vehicle having been deliberately steered off the road provided an evidential basis for an alternative explanation for the subsequent collision which did not involve carelessness. However, it remains on the prosecution to prove beyond reasonable doubt that Mr Riley’s driving fell below the standard of the reasonable and prudent driver, and that in passing the cyclist he made an error of judgment. In the circumstances of this case, as with many others involving allegations of careless driving, that requires the facts to be sufficiently strong that the only reasonable available inference is that there has been careless driving.
[45] As I have already set out, Mr Riley submitted that the Court had available to it two potential inferences as to the reason for the collision, either that the cyclist veered into the car, or, alternatively, the car veered into the cyclist. I do not, however, consider the choices were so stark, or that the inferences were of equal strength. In my view, the inferences to be drawn from the proven circumstances do establish beyond reasonable doubt that Mr Riley failed to exercise the degree of care required to ensure he safely passed Mr Keogh.
[46] Mr Riley’s evidence was that the cyclist was about 30 centimetres to the left of the shoulder line. However, the only direct evidence he gives of observing the cyclist is when he “identified the cyclist approximately about 200 metres in front”. Mr Riley, who puts his speed at 100 kilometres an hour, calculates that it would have taken him about four seconds to reach the cyclist at a distance of some 200 metres at the time he first saw him. Mr Riley’s evidence was that as he approached the cyclist he was “looking out in front”. He refers to the cyclist as being in his peripheral vision, and there was nothing to suggest that he was on a collision course. He felt there was enough space between himself and the cyclist to pass, and while he was to the left of the carriageway as a result of him having earlier merged from another
lane, he put himself at approximately 40-50 centimetres to the right of the shoulder line.
[47] Photographs of Mr Riley’s vehicle show where the impact with the cyclist occurred at the front left corner of his car. The front left light is broken, there is panel damage to the left fender and the left mirror is broken, no doubt as a result of Mr Keogh falling away down the left-hand side of the vehicle as a result of the initial impact.
[48] Mr Riley was under an obligation when passing another vehicle ahead of him to do so in a safe manner. That is, to carry out the task of passing a cyclist on the open road in the way a reasonable and prudent driver would. Mr Riley was travelling at 100 kilometres an hour, yet, apart from having made his initial observation 200 metres from the cyclist, on his own evidence in the four seconds he calculates it took him to travel to a position where he would pass Mr Keogh, he was not specifically watching the cyclist. Rather, on Mr Riley’s evidence the cyclist remained in his peripheral vision, he having at the distance of 200 metres taken the view, with the cyclist 30 centimetres to the left of the shoulder line and him 40-50 centimetres to the right of the shoulder line, that he had sufficient space for him to safely pass at such a speed. I do not consider that is the act of a reasonable and prudent driver.
[49] As Judge O’Driscoll observed, care is required when witnesses attempt to estimate distances and time; such evidence is often inaccurate. However, approaching the matter on the basis of Mr Riley’s own evidence, I doubt a gap of 70-
80 centimetres would be sufficient for one motor vehicle to pass another vehicle in the course of a regular passing manoeuvre, travelling at 100 kilometres per hour. It simply would not allow sufficient room or time to allow for any slight deviation of direction or movement between the two vehicles. At a slower speed with more time to take corrective action if required or to assess the situation when approaching the vehicle ahead, it may have been sufficient. However, in the present case, with a motor vehicle passing a cyclist at 100 kilometres per hour on the open road, that was not the case. The speed involved and what on Mr Riley’s evidence must have been
the distance between his vehicle and the cyclist did not allow for any slight variation in the course of either vehicle.
[50] It is incumbent on the vehicle approaching another vehicle from behind, be it another car or, as in this case, a cyclist, to ensure they are able to pass that vehicle safely, and that in undertaking that manoeuvre the approaching driver provides himself with sufficient room to do so. From Mr Riley’s own evidence it is apparent that he failed to do that. In explanation for that misjudgement, he suggests that Mr Keogh must have veered into him, yet he made no observation of that actually occurring.
[51] If Mr Keogh did suddenly at the very last fraction of a second (as it would have to have been) slightly vary his course, then Mr Riley must have already had his vehicle positioned far too close when overtaking the cyclist in order for any collision to have occurred. The act of allowing his vehicle to be situated in a parallel position so close to the cyclist at the time he passed Mr Keogh, at the speed he was travelling, is of itself sufficient to constitute carelessness. The facts, in my view, admit of no other conclusion.
[52] For completeness, I note contributory negligence is not a defence to a charge of careless driving. I hasten to add that I make no finding that there was any such negligence on the part of Mr Keogh, having already concluded there is no evidential foundation of Mr Keogh having veered into Mr Riley’s path. However, if there had been some sudden change of direction on the cyclist’s part, as postulated, it would not in the circumstances of this case, and on the evidence given by Mr Riley himself, excuse his error of judgement in the way he positioned his vehicle to pass Mr Keogh.
[53] A reasonable and prudent driver must overtake in a manner that provides a safe distance between the vehicles, and as far as is reasonable mitigates the risk of a collision occurring during the course of the passing manoeuvre. Judge O’Driscoll’s conclusion that Mr Riley made an error of judgement when he overtook the cyclist as being the only reasonable inference is, in my view, sound and was a finding available to him on the evidence. Had the cyclist suddenly swerved out in front of Mr Riley’s path as he approached, then the collision would not have been the result
of any lack of care on Mr Riley’s part, but rather the sudden and negligent act of the cyclist. However, there is no evidence, and particularly not from Mr Riley, of that having occurred. Mr Riley gave no evidence of seeing the cyclist do that.
[54] Mr Riley suggested that such an event could reasonably be inferred from the evidence regarding the respective positions of the cyclist and his vehicle, but I reject that is so. As I have already traversed, there is no evidence of Mr Keogh having changed course in front of Mr Riley. If there had been some slight change, perhaps almost instantaneously, as Mr Riley’s vehicle passed, then he was already far too close to the cyclist and any action by Mr Keogh at that fraction of an instance which may have initiated the contact would not remove his carelessness in allowing his vehicle to be positioned so close at such a speed when passing.
[55] In the absence of any evidential foundation for the cyclist having swerved out into Mr Riley’s path, and because of the circumstances disclosed by Mr Riley’s own evidence, there was sufficient evidence for the Judge to draw the reasonable and logical conclusion that the lack of care on the part of Mr Riley caused the accident. In particular, by driving his vehicle too close to the cyclist to safely pass him. The circumstances admit of no other conclusion. Accordingly, the appeal against conviction must fail, and it is dismissed.
Solicitors:
Canterbury Chambers, Christchurch
Raymond Donnelly & Co, Christchurch
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